The October, 2018 USEPA Enforcement Alert opens by asking the following question: “Do you know that if you are not lead-safe certified, disturbing just six square feet of a lead-based paint covered surface could cost you fines and even jail time?”

In 2018, USEPA announced 141 federal enforcement actions to protect the public, particularly children, from exposure to lead-based paint. Among those subject to recent enforcement actions, including criminal prosecutions for some, have been renovation companies, including ones that broadcast its violations to a national audience on the reality television program Fixer Upper, realtors who failed to provide required lead paint hazard warning notices, and the New York City Housing Authority.

USEPA inspectors are active in Central New York conducting inspections and requiring the production of the detailed paperwork required by the Renovation, Repair and Painting Rule (the “RRP Rule”). Are you prepared to be inspected?

If you work in the lead paint remediation field, make sure your certification has not lapsed. More than half of USEPA enforcement actions involve violations of the certification requirements, including lapsed certifications. Make sure you understand the RRP Rules; for example, private homes only occupied by people at least 62 years of age are not exempt from the RRP Rule. The age exemption only applies to designated housing for the elderly. Lastly, if you worked as an independent contractor on jobs that initiated via a Lowe’s Home Centers, LLC store referral, that may serve as a trigger for a USEPA inspection.

If you are a property or home owner, understand that EPA’s RRP Rule requires that firms performing renovation, repair, and painting projects that disturb lead-based paint in homes, child care facilities, and pre-schools built before 1978 have their firm certified by EPA (or an EPA authorized state), use certified renovators who are trained by EPA-approved training providers, and follow lead-safe work practices.

To understand the scope of the problem, HUD’s National Survey of lead and Allergens in Housing estimated that 38 million permanently occupied housing units (40% of all housing units) in the United States contain some lead-based paint that was applied before the residential use of lead-based paint was banned in 1978. “Housing units” include single-family homes, manufactured housing, and multi-unit dwellings like apartments. Vacant housing, group quarters (e.g., prisons, hospitals, and dormitories), hotels, motels, and other short-term housing, military bases, and housing where children are not permitted to live (e.g., housing designated exclusively for the elderly and those with zero-bedroom units) are not included in this number. More information on these statistics is available from HUD.

Question: What does the RRP Rule require?

Answer:

The RRP Rule requires that renovators are trained in the use of lead safe work practices, that renovators and firms be certified, that providers of renovation training be accredited, and that renovators follow specific work practice standards. Additional information on this rule can be found at http://www2.epa.gov/lead/renovation-repair-and-painting-program.

Question: Who is covered by the RRP Rule?

Answer:

The rule applies to all firms and individuals who are paid to perform renovation, repair, and painting projects that disturb paint in pre-1978 housing and child-occupied facilities. This includes home improvement contractors, maintenance workers, painters and other specialty trades.

Kevin C. Murphy is a member of the Wladis Law Firm, P.C., located in Syracuse, New York. Should you be confronted with lead paint or lead paint renovation issues, please feel free to contact Attorney Murphy or Attorney Timothy Lambrecht of the Wladis Law Firm to determine if we can be of assistance to you.

Kevin C. Murphy concentrates his practice in the areas of environmental compliance and litigation; environmental and white-collar criminal defense, and complex litigation matters. Mr. Murphy is a graduate of the University of Virginia School of Law and a former senior trial attorney with both the Kings County (NY) District Attorney’s office and the U.S. Department of Justice Environmental Crimes Section in Washington, D.C. He previously taught a seminar on environmental criminal enforcement at the Syracuse University School of Law and has been listed in The Best Lawyers in America.